Discharge from hospital and NHS continuing care (2)

 In Elderly/Vulnerable Client

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It is very common for the frail elderly to be admitted to hospital for bony injuries following a fall and to be treated by an orthopaedic surgeon.  The orthopaedic surgeon will treat the bony injury and having done so to the point where the patient can no longer benefit from in-patient care, may consider that they are ready for discharge.

A common scenario is that the stress of injury combined with a change of environment  triggers a worsening of the symptoms of underlying physical or cognitive problems with the result that the patient now requires a new or increased care package.

The Rules

Under the rule 2(1) Delayed Discharge (Continuing Care) Directions 2009 (the Directions), issued by the Department of Health, before an NHS body gives notice of a patient’s case to a social services authority in compliance with its duties under s2(2) Community Care(Delayed Discharges etc) Act 2003, it must:-

  • Take reasonable steps to ensure that an assessment of eligibility for NHS continuing care is carried out in all cases where it appears to them that the patient may have a need for such care.
  • In doing so it must consult with the relevant social services authority, the patient and where appropriate, the patient’s carer.

“Continuing care ” means care provided over an extended period of time to a person aged 18 or over to meet physical or mental health needs that have arisen as a result of disability, accident or illness. NHS continuing care means a package of continuing care that is arranged and funded solely by the NHS.[1]

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Whether a person qualifies for NHS Continuing Care matters because:-

  • NHS continuing care is free and the NHS will pay not just for medical care, but for all care services.  Social services care is usually means tested.
  • Whilst both social services and NHS care allow the authority to take account of the resources available to that authority in deciding both what level of need will be met and how it will be met, social services care is subject to a more tightly defined legal framework that in practice provides the individual with a set of rights and expectations that are far more easily enforced.
  • In respect of residential care, social services care offers residents a better choice of home as it allows a relative to top up fees beyond those that social services are willing to pay which many PCT’s will not allow.

Test for Eligibility

The Directions set out the test for whether a patient qualifies for NHS Continuing Care at direction 2(7).  This test is based on that set out in the case of R (Coughlan) v North & East Devon Health Authority [1999] EWCA Civ 1870.   The gist of it is that all the care must be paid for by the NHS where by reason of the quantity of care or the nature and quality of that care, the care as a whole is beyond what a social services authority could be expected to provide. The Department of Health refers to this as the “primary health need” test.

The definition in the directions is too vague to be of much use to practitioners with the result that the Department of Health has developed practice tools to determine the issue.

Decision making process

A single health worker may apply a “Checklist” to decide whether a case merits a full assessment. If a full assessment appears warranted, this must be carried out by a multi-disciplinary team (MDT) containing people from all the specialisms necessary to make an accurate assessment. It is usually done by a nurse and a social worker jointly with relatives but may include a geriatrician, speech and language therapist, nutritionist or a mental health professional. The teams will complete a “decision support tool” which grades the extent of a persons needs against specified criteria in 11 “health domains.”

The MDT makes a recommendation to the relevant NHS body, usually the PCT, which will usually accept the recommendation but may ask for more information.

Where a patient has a primary health need arising from a rapidly deteriorating condition and the condition may be entering a terminal phase, a clinician should complete a “Fast Track Pathway Tool.”  Where the clinician submits a form finding that the patient is entitled to NHS continuing care, the NHS body must make a decision that the patient is eligible for such care.

The patient or a relevant carer must be informed of the result.

Disputes are initially raised with the NHS body, usually the PCT and can be referred to the Strategic Health Authority for an independent review panel assessment in the event that the matter remains unresolved.


It is important to emphasise that in all cases, the hospital must consider whether NHS continuing care may be needed and if so, make a decision as to eligibility for such care before notifying social services that their assistance may be necessary.

NHS money has recently been diverted to social services authorities to pay for rehabilitation services for people coming out of hospital and these services are the subject of the next article.


[1]  Definition taken from paragraph 8 – “The National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care July 2009 (revised)”.

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